Sued in TX by B of A

[NeedHelpinTexas]

1. Who is the named plaintiff in the suit? B.ank of A.me.rica

2. What is the name of the law firm handling the suit? S.cott and a$$/o/ciates, PC

3. How much are you being sued for? >22K

4. Who is the original creditor? Plaintiff

5. How do you know you are being sued? I was served

6. How were you served? In person

7. Was the service legal as required by your state? In-person or certified mail

8. What was your correspondence (if any) with the people suing you before you think you were being sued? received a letter from them telling me they are a debt collector and trying to collect a debt from plaintiff

9. What state and county do you live in? Texas, Galveston

10. When is the last time you paid on this account? March of 2020

11. When did you open the account (looking to establish what card agreement may be applicable)? 2016

12. What is the SOL on the debt? 4 years

13. What is the status of your case? Suit served? Motions filed? I was served recently and i need to file OA

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) yes

15. Did you request debt validation before the suit was filed? I have not

16. How long do you have to respond to the suit? 30 Days.  I plan to answer in time, trying to learn as much as possible before I file.  Simply a list of "facts" and two counts...suit on debt and breach of contract. Plus credit card statements attached to the back.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  They stapled a copy of the last statement to the lawsuit.

18.  How did you find out about this site? Internet search

I am writing my answer to the suit. I have done a search on my own county's court record website, as well as harris county (a much larger county close by) to find strategies, or maybe even law firms who have somewhat of a decent win ratio against plaintiff - and i am discouraged. Also the ProSe wins are just few and far in between.

This is more or less what I plan on:

1.       DEFENDANT'S ORIGINAL ANSWER

NOW COMES Defendant, <me>, named Defendant in the above-entitled and numbered cause, and files this Original Answer, and shows the Court:

2. GENERAL DENIAL

Pursuant to Rule 92 of the Texas Rules of Civil Procedure, Defendant denies each and every, all and singular, of all allegations set forth in Plaintiff's Original Petition, and demands strict proof thereof by preponderance of credible evidence as required by the Texas Rules of Civil Procedure. Entering this general denial does not prevent defendant from raising other defenses at trial, Texas Rules of Civil Procedure Rule 502.2(b)

 

3. AFFIRMATIVE DEFENSES

By way of further answer, in the alternative, if such be necessary, and without waiving any of the foregoing, Defendant asserts and/or alleges the following affirmative defenses:

                                 i.            contributory negligence;

                               ii.            laches waiver;

                             iii.            failures of consideration;

                             iv.            affirmative defense of fraud;

                               v.            the defense of justification and excuse;

                             vi.            the Business Judgment Rule;

                            vii.            failure to mitigate damages, and;

                          viii.            all conditions precedent has not been performed and has not occurred.

 

Defendant further alleges the following affirmative defenses:

a.       Plaintiff fails to state a claim on which relief can be granted.

b.      Plaintiff's action is barred by statutes of limitations or laches.

c.       Plaintiff's action is barred by accord and satisfaction.

d.      Plaintiff's action is barred by reason of estoppel.

e.       Plaintiff's action is barred by unjust enrichment.

f.        Plaintiff's action is barred by violation of the duty of good faith and fair dealing.

g.      Plaintiff's action is barred by usury.

h.      Plaintiff's action is barred by lack of capacity.

i.        Plaintiff's action is barred by its failure to validate the debt.

j.        Plaintiff's action is barred as this is not an action on an open account.

k.      Plaintiff's action is barred by setoff, recoupment, or payment.

l.        Plaintiff's action is barred by its failure to mitigate damages.

 

4. RIGHT TO AMEND AND SUPPLEMENT ANSWER

Defendant respectfully reserves the right to amend and supplement this answer, including the right to add, change, or withdraw affirmative defenses, as may be appropriate or necessary because of discoveries or orders of this honorable court

 

5. PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant respectfully prays  

A.      That the court denies plaintiff's petition,

B.      That Plaintiff take nothing herein,

C.      that Defendant be awarded the relief prayed for hereinabove, and for such other and further relief, special or general, legal or equitable, as may be shown that Defendant is justly entitled to receive.

 

Respectfully submitted,

 

<me>

I have read most of the information here

I also read the info on affirmative defenses on this forum

So, from some of that discussion, it seems you change the burden of proof to yourself, if you include "the wrong" affirmative defenses. So I am in doubt whether to include some of these, none of these or all or more of the affirmative defenses I have.

My main goal will be to avoid a judgment (although I am reasonably garnishproof). I have the funds for settlement - b of a offered me 25% in the past (but I did not have the funds at that time). From what i can gather the arbitration route is not an option available to me. 

What can I do to make my negotiation position as strong as possible?

Sorry for the long post. The more I research, the less hopeful I get.

Thanks in advance for any insights/remarks

 

 

 

 

[NeedHelpinTexas]

Additionally .. 

So I planned on moving to FL before I got sued. Actually, a seller has excepted an offer for my new house in FL before I got served.  I already sold my primary residence in tx (in July), and am temporarily renting back.  I probably should have dodged the serve in hindsight, correct? 

Anyway, the court hearing is set for November, bu i plan to have moved already. Is there anything to my advantage in this scenario? Just asking the smarter minds here.

It also means I will need an attorney if this drags on, because there are physical court appearances required, Correct?

[Clydesmom]

34 minutes ago, NeedHelpinTexas said:

I am in doubt whether to include some of these, none of these or all or more of the affirmative defenses I have.

DO NOT use any of that garbage.  It is clear you cut and pasted that.  NONE of it applies to your situation.  You are being sued by an original creditor.  The suit is well within the TX SOL so laches doesn't apply.  Only UT allows statute of frauds defense so that doesn't apply.  Satisfaction and accord is not a viable defense in a debt case.  Only landlord/tenant and secured debt requires satisfaction and accord as well as mitigation of damages.  The reality is you are being sued by an OC and therefore your only two defenses are the SOL (does not apply as it is filed well within) and identity theft.  Neither of which happened.  Your only options left are settling or bankruptcy.

37 minutes ago, NeedHelpinTexas said:

What can I do to make my negotiation position as strong as possible?

Come up with as much cash as possible to settle this.  For the amount of money you owe they are not going to just go away or back down.

28 minutes ago, NeedHelpinTexas said:

So I planned on moving to FL before I got sued. Actually, a seller has excepted an offer for my new house in FL before I got served.  I already sold my primary residence in tx (in July), and am temporarily renting back.  I probably should have dodged the serve in hindsight, correct? 

WRONG.  Once they filed in Texas the case will be heard there because they filed BEFORE you moved out of state.

29 minutes ago, NeedHelpinTexas said:

Is there anything to my advantage in this scenario?

Only that you have sold your house and should have the cash to settle.  It does nothing to make the suit go away at all.

29 minutes ago, NeedHelpinTexas said:

It also means I will need an attorney if this drags on, because there are physical court appearances required, Correct?

Correct.  You can settle this from FL without having to go to court though.  Reach an agreement on the terms and pay it and you don't have to appear.  

[NeedHelpinTexas]

21 minutes ago, Clydesmom said:

DO NOT use any of that garbage.  It is clear you cut and pasted that.  NONE of it applies to your situation.  You are being sued by an original creditor.  The suit is well within the TX SOL so laches doesn't apply.  Only UT allows statute of frauds defense so that doesn't apply.  Satisfaction and accord is not a viable defense in a debt case.  Only landlord/tenant and secured debt requires satisfaction and accord as well as mitigation of damages.  The reality is you are being sued by an OC and therefore your only two defenses are the SOL (does not apply as it is filed well within) and identity theft.  Neither of which happened.  Your only options left are settling or bankruptcy.

 >> Alright, thanks for being candid. Honestly copied from actual case files by lawyers whose profession it is to help clients with this.  Then I read the forum on affirmative defenses and noticed it didn't apply, yet it looks like sometimes it is successful? Oh well.

Come up with as much cash as possible to settle this.  For the amount of money you owe they are not going to just go away or back down.

>> yes, that is what I figured.

WRONG.  Once they filed in Texas the case will be heard there because they filed BEFORE you moved out of state.

>> OK

Only that you have sold your house and should have the cash to settle.  It does nothing to make the suit go away at all.

Correct.  You can settle this from FL without having to go to court though.  Reach an agreement on the terms and pay it and you don't have to appear.  

>> Is there a particular time during this process that will put me in a better position for negotiations? From looking at past court cases, I will be able to drag this for about a year with just going through the motions

I don't yet fully get the functionality of this website yet, sorry for misusing quotes.

[Clydesmom]

3 hours ago, NeedHelpinTexas said:

I don't yet fully get the functionality of this website yet, sorry for misusing quotes.

No worries.  We have all done it.  For future use:  just highlight the text you wish to quote and a little "quote" box will appear and if you click that it will quote only what you highlighted.

[Clydesmom]

3 hours ago, NeedHelpinTexas said:

Is there a particular time during this process that will put me in a better position for negotiations? From looking at past court cases, I will be able to drag this for about a year with just going through the motions

ANY time before the gavel falls.  DO NOT tell them you sold your house or are moving to FL.  Settling is about leverage and if they know you may have equity coming you lose ALL leverage on that point.  Knowing you would be anxious to settle instead of hiring a lawyer or flying back to TX for the trial also erodes leverage.  Simply make an offer and keep negotiating until you reach a number you can both agree on.  Get ALL terms in writing before you pay.

[BackFromTheDebt]

Is there an arbitration provision in the card agreement?

if so, that can at least move the case out of court and into a more telephonic venue, which makes it easier for the OP to move. 

[NeedHelpinTexas]

5 hours ago, BackFromTheDebt said:

Is there an arbitration provision in the card agreement?

if so, that can at least move the case out of court and into a more telephonic venue, which makes it easier for the OP to move. 

I have checked, and there is not. Apparently B of A took out all these provisions from their credit card statements around 2010. These cards were initiated in 2016.

[NeedHelpinTexas]

12 hours ago, Clydesmom said:

ANY time before the gavel falls.  DO NOT tell them you sold your house or are moving to FL.  Settling is about leverage and if they know you may have equity coming you lose ALL leverage on that point.  Knowing you would be anxious to settle instead of hiring a lawyer or flying back to TX for the trial also erodes leverage.  Simply make an offer and keep negotiating until you reach a number you can both agree on.  Get ALL terms in writing before you pay.

Thanks, that is helpful. Scott et al actually have a website to enter in the offer.  I have read the sections on this website about what to get in writing before making a payment, so that will be a framework for me.